An age-old question

Conducting age assessments is often a challenging task for local authority children's services teams. Sally Gore reviews recent developments in the case law.

Children’s Services departments are often called upon to assess the age of a young person seeking support under the Children Act 1989. Such cases commonly involve young unaccompanied asylum seekers who have no recourse to public funds save for any entitlement they may have by virtue of being a child in need, as defined in s.17(10) Children Act 1989. This support may include not only support and maintenance under s.17 but also accommodation under s.20, Children Act. For young people who are in receipt of such accommodation for a prescribed period, there is, in due course, access to ‘leaving care’ support.

Consequently, if an individual is able to establish that they are a child at the point at which they present themselves to a local authority and request assistance, they can look forward to significant and far-reaching support for a considerable period of time. The decision as to a person’s age also has implications for the education they receive in this country and for decisions that may be taken in the future by the immigration authorities.

Guidance

For a number of years now, the guidance for the conduct of age assessments has primarily come from the case of in R(B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 2 FLR 888. Stanley Burnton J set out the following principles to be followed by local authorities:

1. Avoid judicialisation of the process. Age assessments in borderline cases are complex but should not be approached like a trial.
2. The assessor should explain to the subject of the assessment the purpose of the interview.
3. Except in obvious cases, a person’s age should not be assessed based on appearance alone.
4. If there is reason to doubt what a person says about their age, the decision-maker will need to ask questions designed to test credibility.
5. The subject of the assessment does not bear the burden of proving their age.
6. A local authority must conduct their own assessment of a person’s age. It is not enough to simply adopt a decision made by the Home Office.
7. If the assessors disbelieve the subject’s assertion of their age, they must give adequate reasons for their decision. However, they are not required to give detailed reasons such as would be required in other contexts.
8. If an interpreter is required, it is best practice for them to be physically present at the interview rather than available by telephone. Interpreters should also make a note of the questions asked and the answers given.
9. The law does not require a verbatim note of the interview but it is best practice to keep such a note.
10. The assessor must be mindful of his or her lack of familiarity with the subject’s background.
11. If there are matters that the assessors feel point towards an adverse decision, they must explain this to the subject of the assessment and give them the opportunity to comment.

The London Boroughs of Croydon and Hillingdon, whose locations mean that they encounter more of these cases than many others, have also drawn up their own guidance. Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers provides best practice guidance to social workers conducting age assessments. These guidelines were approved by Stanley Burnton J in R(B) v Merton London Borough Council (above).

A New Approach to Age Assessment Cases

In 2009, a decision of the Supreme Court fundamentally altered the way in which disputed age assessments are challenged in the courts. Although a challenge is still brought as a judicial review, following R(A) v London Borough of Croydon; R(M) v London Borough of Lambeth [2009] UKSC 8; [2010] 1 All ER 469, the court may need to conduct a full trial of the issue with oral evidence from the parties.

The rationale for this is that a person’s age is an objective question of precedent fact. It is not something that can be evaluatively assessed by a local authority in the way that the question of whether someone is ‘in need’ or lacks ‘suitable accommodation’ is a matter of evaluative judgment. Consequently, a challenge to a decision based on a disputed age assessment should not be challenged by way of a conventional judicial review in the way that evaluative questions are challenged; rather, the court should determine the subject’s age on the basis of evidence.

Following this decision, further guidance on the conduct of fact-finding hearings was given by Holman J, giving directions in six age assessment cases that had been awaiting the decision of the Supreme Court.[1] This guidance dealt with the procedural and case-management issues that arise from the new approach to disputed age assessment cases:

• A claimant wishing to challenge a decision that is based on an assessment of their age must still apply for permission as would be required for any other judicial review.
• The court must do more than determine whether or not a claimant is a child; it must make its own decision as to the person’s age based on the evidence.
• The standard of proof is the ordinary civil standard.
• The local authority social worker(s) who conducted the assessment would normally be expected to give oral evidence.
• The claimant would also be expected to give evidence. The case law on children giving evidence in care proceedings is not directly relevant to this type of case.
• Although earlier cases had highlighted the potential pitfalls of relying on medical evidence of a person’s age, a medical report should not be entirely disregarded either by a local authority conducting an assessment of age or by a court hearing a challenge to such an assessment.

Burden of Proof

The issue of which side should bear the burden of proof in these hearings has been raised in a number of recent cases. In R(F) v Lewisham; R(D) v Manchester (above), Holman J suggested that the burden of proof is not necessarily borne by the claimant. This will depend on the circumstances of an individual case and so is a matter best left to the trial judge.

In a later case, Langstaff J pointed out that the decision facing the Court is not simply one of choosing between two alternatives.[2] Rather, the parties’ respective positions on the claimant’s age may represent opposite ends of a range of possible ages, and it is for the Court to decide where within that range the claimant’s true age falls as a matter of fact.

More recently, in R(CJ by his litgation friend) v Cardiff City Council [2011] EWCA Civ 159, the Court of Appeal held that in the context of determining whether or not a claimant was a child, the Court below had been wrong to approach the question in terms of the claimant needing to discharge the burden of proof. A person’s age is a question of precedent fact that determines whether or not a public body has a power to act (in this case, exercise the powers under Part III, Children Act). It is not for a public body to determine its own jurisdiction. Therefore, in this situation, there should be no legal hurdle that a claimant needs to overcome; it is simply for the Court to decide, on the balance of probabilities, whether the claimant is/was a child at the relevant date. For the same reason, there is no requirement to give a claimant the ‘benefit of the doubt’.

Administrative Court v Upper Tribunal

Although a claim in an age assessment case may be commenced in the Administrative Court, if permission is granted, the case will now usually be transferred to the Upper Tribunal Immigration and Asylum Chamber. This is in accordance with s. 31A(3), Senior Courts Act 1981 and Article 11(c)(ii) of the First-tier Tribunal and Upper Tribunal (Chambers) Order. The test for determining whether to order a transfer is whether "it appears to the High Court to be just and convenient" to make the transfer. This test will usually be satisfied because the Administrative Court does not generally decide questions of fact on contested oral evidence and the Upper Tribunal is already experienced in age assessment of children from overseas in the context of disputed asylum claims. The law and procedure that applies in the Upper Tribunal is the same as that applicable to age assessment cases that would previously have been heard in the Administrative Court.

Expert evidence

In R(AS) v London Borough of Croydon [2011] EWHC 2091 (Admin) at [27], His Honour Judge Anthony Thornton QC (sitting as a Deputy High Court Judge) gave the following guidance in relation to the use of expert evidence in these cases:

“The Administrative Court or the Upper Tribunal should limit the number of expert witnesses that are permitted and should follow the practice provided for in the CPR 35, including the proposed changes in practice to be introduced by amendment in 2012, relating to defining the issues to be addressed, the number and disciplines of experts to be permitted and the use, wherever possible, of jointly instructed experts. However, experts' meetings and a joint statement prepared by experts of similar disciplines will not usually be ordered. The appropriate directions for expert evidence should be sought from the Administrative Court (or the Upper Tribunal in a case referred to or started in that tribunal) and issued by the court or tribunal prior to the hearing of the substantive dispute”.

Settlement

In the event that a disputed age assessment case settles before a final hearing, the parties are required to submit the proposed settlement to court, with an agreed statement of reasons, for the Court to approve the settlement.[3] This is because the child claimant is a protected party and CPR 21.10 provides that no settlement, compromise or payment shall be valid without the approval of the court.

A right ‘in rem’

A declaration of a person’s age by a Court in a disputed age case is a declaration ‘in rem’.[4] That is, it is a declaration that nobody can go behind. It binds not only those parties to the proceedings but also anyone with an interest in the claimant’s true age.

Sally Gore is a barrister at 14 Gray's Inn Square. She is the author of The Children Act 1989: Local authority support for Children and Families, which is published by Jordan Publishing.

[1] R(F) v Lewisham London Borough Council; R(D) v Manchester City Council [2009] EWHC 3542 (Admin), [2010] 1 FLR 1463.

[2] MC v Liverpool City Council [2010] EWHC 2211 (Admin); [2011] 1 FLR 728.

[3] R(AS) v London Borough of Croydon (above) at [38].

[4] R(AS) v London Borough of Croydon (above).